Knerly: Hello everyone, my name is Steve Knerly. With me here is Jenna Solari. We are both legal instructors at the Federal Law Enforcement Training Center in Glynco, Georgia. Say hi to everyone, Jenna.
Solari: Hi everybody.
Knerly: Jenna and I instruct criminal investigators, including investigators with the various Offices of Inspectors General. Jenna is an attorney and former NCIS investigator. Jenna, can you tell the folks a little bit about yourself?
Solari: Sure. After I attended law school, I worked for a year for a Federal Appellate Court Judge and after I was done with that, I started my active duty time in the Navy. I was a military prosecutor for awhile down at the Naval Air Station in Jacksonville, Florida. After I finished my tour in Jacksonville, I left active duty and became a civilian special agent with NCIS, the Naval Criminal Investigative Service and I worked for about a year up in the DC field office. After that, I came to FLETC and that was about two years ago.
Knerly: I began my career as a criminal investigator with IRS-CID, the Internal Revenue Service, Criminal Investigation Division. After obtaining my law degree, I left government service for a few years to practice law, but returned as a special agent with an Office of Inspector General, my current position. About six years ago, I was detailed by my agency as an instructor to the Inspector General Criminal Investigator Academy, and more recently, for the last two years to the FLETC Legal Division.
In this podcast, Jenna and I are going to discuss the self-incrimination issues that arise in the context of interrogating or interviewing government employees during the course of misconduct investigations.
Solari: So Steve, what is it about government employees that would require investigators to consider doing something different when interviewing them, as opposed to your average citizen?
Knerly: Well Jenna, it has to do with the ethical obligations they have as public employees, and the effect that may have on their Constitutional right against compelled self-incrimination. As public employees, the Standards of Conduct that guide their employment generally require they cooperate with internal investigations into their employment-related conduct. On the one hand, they have a right under the Fifth Amendment to refuse to answer an investigator’s questions when they believe their responses could be used to criminally prosecute them. On the other hand, they could face disciplinary action, including possible termination, for refusing to cooperate. This is sometimes said to put the employee between a rock and a whirlpool.
Solari: Well, do government employees somehow have less of a Fifth Amendment right than members of the public? Has the Supreme Court addressed that issue?
Knerly: No court has ever held that the rights guaranteed under our Constitution are different for public employees than for other citizens. As public servants, however, they can, and should, be accountable to the public for the performance of their public duties. When that accountability clashes with their individual Constitutional rights, the courts must strike a balance. Such was the case decided by the Supreme Court in Garrity v. New Jersey, when police officers accused of being involved in a ticket-fixing scheme were ordered by their department to give testimony about their conduct, or be fired if they refused. Their testimony was used to convict them in the scheme. Finding that the testimony obtained under threat of job loss was “compelled” testimony prohibited by the Fifth Amendment against self-incrimination, the court held the statements were immune from use in the criminal prosecution, and reversed their convictions.
Solari: So the Supreme Court said that a public agency can’t force employees to give statements to an investigator by threatening them with loss of their jobs and then still expect to use those statements to criminally prosecute the employee. If investigators do that, then it would have the same effect as if a prosecutor granted the employee, what we call, “use immunity”, that is, a guarantee that the statement, or any information gained as a result of their statement, can not be used to prosecute them for a crime.
Knerly: Exactly right Jenna.
Solari: Well let me see if I understand this, then. If I am an OIG or an internal affairs investigator, the employees I interview are, in effect, compelled to answer my questions. But under Garrity, what they would tell me can’t be used to prosecute them. Isn’t it possible to interview them and use their statements to prosecute them?
Knerly: Not as long as they are truly compelled, it would violate their Fifth Amendment right. However, if the compulsion was removed, say by removing the threat to their employment for choosing to invoke their Fifth Amendment right, then any statements they’d give would be voluntary and could be used against them in a criminal prosecution against them. The Department of Justice has issued guidance that recommends use of a Garrity warning to accomplish just that.
Solari: Well, when should this Garrity warning be used, and what does it say?
Knerly: The warning should be given to an employee by the investigator prior to the questioning whenever the following circumstances exist: 1) the employee being interviewed would have an objectively reasonably belief that they could be disciplined or fired for refusing to cooperate with the investigator; and 2) it is foreseeable that the information sought from the employee may be used to prosecute the employee criminally. The warning language used varies slightly from agency to agency, but the Department of Justice model version for the OIG’s reads: “You are being asked to provide information as part of an investigation being conducted by the Office of the Inspector General into alleged misconduct and for improper performance of official duties. This investigation is being conducted pursuant to the Inspector General Act of 1978, as amended. This is a voluntary interview. Accordingly, you do not have to answer questions. No disciplinary action will be taken against you solely for refusing to answer questions. Any statement you furnish may be used as evidence in any future criminal proceeding or agency disciplinary proceeding, or both.”
Solari: So, if the warned employee refuses to cooperate on Fifth Amendment grounds, they can’t be disciplined for that refusal, and if they do cooperate, what they say can be used to prosecute them, because removal of the threat makes the statement voluntary and therefore not compelled. But what if the investigation is administrative, rather than criminal, in nature? Couldn’t an investigator then compel the employee’s cooperation and use that statement, or the employee’s refusal to give a statement to support a disciplinary action or even termination?
Knerly: You have rightly recognized that the Fifth Amendment protection prohibits use of compelled testimony in criminal prosecutions, but does not extend to use of such testimony for other purposes, including administrative disciplinary proceedings. The Fifth Amendment right against self-incrimination continues to give protection whenever the employee can reasonably fear use of their compelled testimony against them criminally, even during an investigation that is ostensibly focused on administrative misconduct. That right would hardly give protection if an employee could be punished merely for validly exercising that right. As a result, the federal courts have held that an employee cannot be fired merely for exercising their Fifth Amendment right.
Solari: Well, does that mean that public employees can refuse to account for job related misconduct without facing any consequences? I mean, what if the allege misconduct isn’t criminal? Or, could an investigator simply force an employee to talk, which would effectively give them immunity from the use of any statement in a criminal proceeding, and thereby leave the employee with no valid Fifth Amendment privilege to claim, anyway?
Knerly: Once again, Jenna, you’ve hit right on point. Once employees are on notice that they can’t incriminate themselves by their compelled cooperation, because their statements cannot be used against them criminally, they have no valid Fifth Amendment privilege to invoke and their refusal to cooperate can thus be punished. The key is ensuring that employees are aware of this, which led to the Department of Justice recommending the use by investigators of the Kalkines warning in such circumstances. By expressly telling employees that their cooperation is required, their statements are immune from criminal use, and derivative use, and refusal to cooperate could lead to their termination, an employees’ subsequent refusal to cooperate can be punished through disciplinary action, since their refusal cannot be based upon a valid assertion of their Fifth Amendment privilege.
Solari: It seems that using the Kalkines warning would be of great benefit to investigators of administrative employee misconduct allegations. By enabling them to force employees between the rock and the whirlpool, they’ll be able to compel a full accounting of the conduct to allow them to be properly disciplined, if appropriate, and if the employee refuses to account, then he could be appropriately disciplined for the failure to account for the presumed misconduct.
Knerly: Yes, but the investigators who use the Kalkines warning must be very cautious, because granting use immunity to someone is no trifling matter. A prudent investigator would check agency policy, and seek guidance from a supervisor and Federal prosecutor before doing so.
Solari: Ok, well so to summarize, whenever an OIG or internal affairs investigator want to interview an agency employee who is obligated to cooperate with the investigation, that investigator has to consider how any statements obtained may be used. If the statements might be used to support criminal charges against the employee, then the Garrity warning should be given to the employee before any questioning. If the statements would only be used to determine whether administrative discipline is appropriate, and there’s no foreseeable criminal culpability on the part of the employee, then a Kalkines warning would be appropriate.
Knerly: Sounds like you’ve got it Jenna. If anyone listening anticipates having to interview public employees who are obligated to cooperate with them is unsure how to proceed properly, we strongly recommend you review your agency policy, and speak with your agency attorneys and prosecutors.
Solari: Always good advice. Thanks so much Steve for this overview of Garrity and Kalkines warnings involved in interrogating government employees. If anyone out there would want to hear more of our legal Podcasts, you can visit our website at, and get ready to copy, http://www.fletc.gov/training/programs/legal-division/podcasts.
Knerly: Thanks, Jenna.
Solari: Thanks, Steve.